The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Monday, May 30, 2005

A Memorial Day reminder of why it's important to study history

— "Amnesty International Report 2005," a speech by Amnesty International's Secretary General Irene Khan at the Foreign Press Association in London, as quoted by today's Washington Post.

Amnesty International's website informs us that Ms. Khan "studied law at the University of Manchester and Harvard Law School, specialising in public international law and human rights." I respectfully submit that she should have studied more history. Now, there are indeed some reasonable parallels to Soviet gulags and police-state practices that can be found on the island of Cuba. But, shamefully, they've gone on for decades before 9/11, and they're found in that other so-called "workers' paradise" that's outside the fences of the American base there.

Only someone completely ignorant of history — including even the most general history of the brutal Soviet regime that, over decades, systematically murdered millions of people — could possibly say something so incredibly, embarrassingly stupid. But hey, why did she bother to give a whole speech and publish a report, when she could have made her same devastating point even more clearly with a two-word poster? Ms. Khan's historical allusion amounts to "Bush = Stalin." She adds, "Ironic that this should happen as we mark the 60th anniversary of the liberation of Auschwitz." Well, heck, Ms. Khan, flesh your point out fully, show off that Harvard education, and go up to four words! "Bush = Stalin = Hitler = Satan." That still fits on your average poster board, and is equally valid. You can add some latex masks, or those keen giant puppets, maybe burn an American flag — and get much better international MSM coverage! Energize your base, baby, to see those contributions stream in!

But there was more to Ms. Khan's review of the past year, as it turns out. She also asserted that "the US government and its allies who lead the 'War on Terror' continue to persist with politically convenient but ineffective strategies." Methinks this displays an insufficient appreciation of American citizens' recent history (during the past three years) of being able to stand inside skyscrapers without having the floors fall out from underneath them. Personally, I count each year's absence of passenger jets smashing into our buildings as a simple but fairly important indicator of those strategies' effectiveness, anyone's politics notwithstanding.

But it's important in a report like this one to identify clearly the villains of the world, and Ms. Khan bravely names names:

In 2004, far from any sign of principled leadership, we saw a new and dangerous agenda in the making, rewriting the rules of human rights, discrediting the institutions of international cooperation and usurping the language of justice and freedom to promote policies that create fear and insecurity.

The US is leading this agenda, with the UK, European states, Australia and other states following.

No signs of principled leadership. None! Because, after all, Dubya and his coalition of the coerced, bought, and bribed have been too busy enslaving multitudes and seizing oil reserves. Gosh, it's a good thing the world has the principled leaders of international institutions like Amnesty International and the United Nations keeping people from going feet-first into the limb chipper-shredders! Where would we be without real heroes like Ms. Khan and Kofi Annan? I, for one, can only sleep soundly because of my knowledge that I'm being protected by the sharp points of their rhetorical spears. Let's give thanks for their courage and sacrifice on this Memorial Day, shall we?

Lest I leave the impression that Ms. Khan's report was entirely negative, I should note that among "positive developments [that] gave us hope and energy" during the past year, Ms. Khan pointed to "massive popular mobilization for change in Spain, Georgia, Ukraine and elsewhere." Parse that carefully: Which one of these is not the same? And what prominent examples have been conveniently lumped into "elsewhere"? (Hint No. 1: One of the listed examples involved the election of a hard-left regime in a stable democracy; the defeat of a political party identified with support of America and its other allies in the Global War on Terror is, apparently, exactly equivalent in the eyes of AI to the overthrow of despots. Hint No. 2: Two rather prominent elements of the "elsewhere" involved historic free elections brought to their people as a direct result of the courage and sacrifices of the American military — you know, those folks who wear the same uniforms you see patroling the "gulags of our times" at Gitmo — and they were made possible in part by the relocation from those countries of the very folks now being guarded inside Gitmo. But neither of those events made AI's "highlights" reel for the past year's human rights victories.)

Ms. Khan concludes:

People are hungry for justice and freedom, not just elections but respect for human rights, the rule of law, a free media and a diverse civil society. The challenge of the human rights movement in 2005 is to harness the power of civil society to push government to deliver on their promises.

Well, duh. From elections, the others may flow, and have done so repeatedly throughout history. And with due respect to Ms. Khan, the "politically convenient but ineffective strategies" of America and its allies likely had more to do with the free elections and popular mobilizations for change in the past year than anything (or everything, cumulatively) that Amnesty International has done throughout its entire organizational history.

Ms. Khan doesn't need to be sent to a re-education camp. She simply needs an education.

Tuesday, May 24, 2005

How the Republican MOA signers can defend voting for the nuclear option

In the comments of the two proceeding posts, I've had a lively debate with those who confidently insist that the Memorandum of Agreement permits — nay, guaranteees, as they read it — each Republican signer the right to dishonor his/her (political, moral, nonlegal) commitment to vote against the nuclear option for the balance of the 109th Congress. At least two of the signers, Sens. DeWine and Graham, also make that assertion. And so do political pundits whose opinions and credentials I respect.

Some folks appear to be of the view that Republican signatories are obligated to accept the legitimacy of any determination by a Democrat signatory that "extraordinary circumstances" exist. I have no intention of defending the anti-cloture reform agreement, but I believe that it says exactly the opposite. The provision that states that "each signatory must use his or her own discretion and judgment in determining whether such circumstances exist" means that a Republican signatory is fully entitled to determine that "extraordinary circumstances" do not exist and that a Democrat signatory's contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory's determination of "extraordinary circumstances."

Like me, Mr. Whelan's a lawyer, and he has fabulous credentials that far exceed my own. But for all the reasons I've run through in my original post and its comments (here, here, and here), I firmly believe that the MOU, fairly construed, on its face absolutely omits the "out" that Mr. Whelan and those arguing his side perceive, and in fact that the MOU's clear, unambiguous language precludes that construction.

But the dogged persistence of obviously intelligent people like Mr. Whelan in sticking to their construction — whether it's right or wrong in some absolute sense — suggests to me that if Sens. Graham or DeWine decide it's in their personal political self-interests to vote in favor of the nuclear option anyway, the resulting fall-out will be less than I originally predicted. Whether Mr. Whelan's argument is right or wrong, I don't doubt its sincerity — and must credit its potential effectiveness as, at a minimum, a smokescreen for Republican signers to retreat under. I, personally, couldn't and wouldn't make that argument with a straight face in either a court of law or the court of public opinion. But the issue is whether the Republican signers can, not whether I can, and it will only be the court of public opinion that counts. A split verdict from the public — confusion — may give them enough cover to backtrack if (I think it's actually when, but I'm a cynic) the signing Dems declare that a nomination presents "extraordinary circumstances" and therefore they're free to filibuster.

Live-blogging the Senate floor debate (ostensibly on Owen)

At 9:00 a.m. (Central): Harry Reid just accidentally told the truth on the floor of the U.S. Senate. After saying that he supports the Memorandum of Agreement (the document supposedly calling the Dems on the carpet for routinely filibustering judicial nominees), he said, "Every filibuster is extraordinary." Yes, read that direct quote to yourself again, then look at the document. The Democratic Leader believes that the Democratic signers of the MOA have grounds to filibuster every previously filibustered nominee (except, presumably, Pryor, Owen, and Brown).

He also said, "The nuclear option is dead for our lifetimes." Thankfully, that cannot be true. First, the document only contains a commitment of no rules changes for the 109th Congress, which will end in January 2007 when the 110th Congress is sworn in. Second, at least some of the signers of the MOA won't be back in January 2007 anyway, by their own choice; and the voters may well have reactions that will change the scorecard lineup as well.

At 9:30am: Bless his boozy, craven, liberal, lawyer-like heart, there's a reason that the senior senator from MA (in contrast to its junior senator) still keeps his law license intact. He just performed the first preemptory cross-examination of any Republican signer of the MOU who might waiver and claim he/she's off the hook if the Dem signers are vaguely naughty. He didn't quite use the word "iron-clad," but that's the concept and that's the language, and yes, Teddy absolutely gets both. The message to Graham and DeWine is clear: "Change your mind about voting for the nuclear option, or even claim that you have the right to, and we'll shove this signature of yours up your wazoo sideways on national TV every day for a month running." (He also understands that the commitment only runs through January 2007, avoiding Reid's overstatement.)

Any agreement must be read against background contract principles. One of the most elementary principles of contract law is that a material breach by one part excuses continued performance by the other. So there is, I submit, no question that a Republican signatory is not bound to his promise to oppose cloture reform if the Democrat signatories do not live up to their end of the bargain.

That's absolutely right, and that's where Mr. Whelan stops his analysis. Some staff advisor to the Republican signers could and should have insisted that this proposition be expressly written into the MOA. The Dems couldn't have opposed such a demand with a straight face — "No, we insist that we can breach and you're still bound!" isn't something you can say. But I agree with Mr. Whelan that the common law, and public common sense out of which this common law developed, both give the Republican signers this "right" whether the agreement says so explicitly or not.

But that's not where the analysis or the action will stop when the Dem signers refuse to support cloture. My whole point (which others, e.g., Bradford Berenson and Andy McCarthy are also arguing, more succinctly than I have) is that would-be wafflers on the Republican signers' commitment have to say why the "Democratic signatories [have] not live[d] up to their end of the bargain." Because of the subjective "good faith" standard built into the agreement, no such argument could ever be proved, or even persuasively argued, even in the loosey-goosey court of public opinion.

At 9:45am: Back on the Senate floor, Lindsey Graham is still insisting that he reserves the right to vote for a rule change in the 109th Congress if he thinks the Dems are misbehaving. Well, great, Lindsey — except that's not what the document that you signed says. The document takes that discretion to grade the Dems' sincerity away from you, and expressly gives it to the Dem signers themselves. Plain English, short words, fits on one page. Teddy's gonna eat your lunch on this, Lindsey, and that's awfully pathetic.

At 10:00am: Cornyn invokes Rosanne Rosannadanna's line from the old SNL Weekend Update skits: "Never mind!" (Actually, he meant Emily Litella, another Gilda Radner character whom I've had frequentoccasion to quote, proving again that the blogospheric debate rivals that of the World's Greatest Deliberative Body, except with hyperlinks.) I think at first he's going to use that line on behalf of Graham and DeWine, to invite them to begin eating crow for signing something so catastrophically drafted, so they can start "walking things back." (Cornyn's own mouth still has crow feathers hanging from its corners.) [Now it's Beldar's turn to use an old SNL line, this one from Steve Martin:] But nooooooooo! Cornyn means that the Dems are saying "Never mind" now about Owen.

At 10:15am: Leahy is annoyed that Frist is insisting on getting a record vote on cloture, just as Reid was at the beginning of the morning. Not content to reinterpret the AG's insistance that he hasn't trashed Owen, Leahy now insists on reinterpreting John Cornyn's insistance that he hasn't trashed Owen, not ten minutes after Cornyn left the microphone. But Leahy's mostly sticking to his pre-MOA script, which I think is canny on his part.

At 10:40am: Back to Reid: "The nuclear option is off the table, and we should stop talking about it after today." No suggestion that the Dems have to do anything specific to keep the nuclear option "off the table" on the MOA. But then back to his pre-MOA script as well.

I'm thinking Frist is making a mistake by getting a record vote on cloture. It will only create a clean precedent showing that the seven Dems who signed the MOA are "living up to their commitment," setting up their future arguments of "treachery!" and "deal-breaking!" when/if any Republicans try to walk back on their commitment not to support a rules change.

Now Reid says it explicitly, after directly quoting the "his or her own discretion and judgment in determining whether extraordinary circumstances exist" language: "This [MOA] of course is a subjective test, as it always has been." Is Reid reading BeldarBlog? Naw, Beldar just read the Dems' plan (now becoming more clear, from Reid's and Kennedy's arguments) from the language the Dems suckered the seven Republicans into signing.

At 10:45am: Specter (hoarse and looking very sick) seizes upon Reid's statement that the filibuster will be "occasional" and "very infrequent." (Yeah, right.) The term "extraordinary circumstances," says Specter, "does not lend itself to easy interpretation," so the "occasional" and "very infrequent" words are comforting to him. (Well, except the MOA expressly says who gets to do the interpreting.) But sheesh, Specter now says the MOA maintains the delicate "constitutional check and balance, the very important constitutional separation of power." The nuclear option, sez Specter, would have "materially affected the delicate separation of powers," giving any President greater power; or if defeated, the Dems would have been "emboldened to go further in the use of the filibuster." (Half right; the attempt to change the traditional checks and balances came from the Dems when they started judicial filibustering as a regular party-led matter in 2001.)

At 11:00am: And now the surreal: After a conventional and rambling defense of Owen, Specter concludes with a bizarre anecdote about former Sen. D'Amato singing on the Senate floor while wearing a pig suit, Specter turns the floor back over to Frist. Frist says it's time (noon Eastern) to vote on cloture, and he's right.

At 11:25am: It's sounding to me like virtually the entire Democratic Party contingent in the Senate has jumped aboard the MOU bandwagon. "Obstructing? Moi?" Only a very few "no" votes (e.g,.Corzine & Boxer). "Ayes" from <em>lots</em> of hard-left take-no-prisoners Dems if I'm hearing this right, although it sounds like some are switching back to "no" now near the end.

At 11:30am: 81 to 18, announces the presiding officer ... cloture is approved, and the Senate is in recess (as am I).

Monday, May 23, 2005

Seven gutless suckers in the Senate

Sometimes you look at the results of a negotiation — supposedly made by bright, well-informed and -motivated adults on both sides — and you gotta shake your head and point to the folks who were on one side of the deal and say: "Them suckers just got robbed blind."

This is grand larceny masquerading as a "deal." Only a complete idiot would think that this —

Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

— is a fair trade for this —

In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

Gutless. That's the least profane and most applicable adjective I can come up with to go along with "sucker." Now, "gutless" is a harsh word to apply to a genuine war hero like John McCain. And I don't question his, or any of the other seven's, patriotism. But we're specifically talking about political principle and courage here, and this is a politically gutless act.

These seven, in the "spirit of compromise," have guaranteed that at least two judicial nominees — William Myers (9th Cir.) and Henry Saad (6th Cir.) — will be successfully filibustered. As a direct and intentional result of their "deal," the United States Senate will deliberately violate its constitutional responsibility to either consent, or to refuse to consent, to at least two of the President's judicial nominees.

I don't claim to have thoroughly researched these two nominees — and their comparative merits, or lack of merits, in an absolute sense or as compared to other nominees is frankly irrelevant. I don't know if these two nominees would have, or should have, been confirmed by a simple majority vote. If these same seven senators had voted against both of these nominees — or for that matter, against all seven of the renominated candidates — I might disagree with them, but I would not ridicule and condemn them.

These nominees, and every other judicial nominee submitted by the President of the United States — whoever he may be, of whatever party, because he is the President of the United States — are entitled to that vote. And these two — at a minimum — won't get it.

And in exchange for giving their promise to violate their constitutional duty — their clear, written, unequivocal promise to guarantee that the Senate as a whole defaults on its constitutional duty — these seven senators got exactly nothing. I defy any of these gutless suckers to lay out a scenario in which the "promise" by the Democrats to only filibuster "under extraordinary circumstances" can be enforced, even in the hypothetical "court of public opinion."

Jonah Goldberg writes, "if the Democrats filibuster in something which Republicans don't consider to be an 'extraordinary circumstance' won't the deal be broken and then the Republicans will be free to change the rules[?]" Umm, no. Whoever drafted this piece of larceny extracted a concession which guarantees that the Republicans can never "cry foul" unless they can plead and prove that the Dems are not acting in "good faith" — and not objective "good faith," as measured by the law's proverbial "reasonable man" standard, but subjective "good faith," as measured by each senator's "own discretion and judgment." No one can ever prove, or even make a compelling argument, that this standard will ever be violated.

Only three are guaranteed not to be filibustered. Two at a minimum will be filibustered. But the important question is: How many more will be filibustered?

Beldar confidently predicts: At least one more judicial nominee will be successfully filibustered in the 109th Congress — specifically, anyone that Dubya nominates to the United States Supreme Court. These seven gutless senators — nominally Republicans — have just handed the Democratic Party an absolute veto over the next Supreme Court nominee, which will likely be for the Chief Justice slot.

At least Jack, of Beanstock fame, could eat the handful of beans if his own fairy tale didn't come true. These seven senators got far less than he did. They got nuthin'.

I'm not surprised. But I'm thoroughly disgusted.

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UPDATE (Mon May 23 @ 9:15pm): Ed Whelan, despite his great credentials as a lawyer, also misses the point of the way the "memorandum of understanding" was drafted:

The Republican signatories' agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories' living up to their end of the bargain. The fact that the MOU contemplates that each signatory will use his own discretion in determining whether extraordinary circumstances exist does not mean that Republican signatories will need to defer to a Democrat signatory's determination. On the contrary, it means that a Republican signatory is free to use his own discretion to determine that a Democrat signatory's determination of extraordinary circumstances amounts to a violation of the MOU. And the nomination of any person who elicits fewer Democrat objections than Brown, Pryor, or Owen should not constitute "extraordinary circumstances."

No. That's not a fair reading. If the seven gutless suckers had negotiated harder, they would have either (a) gotten some objective "test" that was not expressly tied to the subjective state of mind of the filibustering Dems, or (b) at a minimum, have deleted the expressly subjective standard (which might have arguably then "implied" that a reasonable-person standard would apply).

Rarely, in drafting a contract, I'll agree to insert a "reasonable person" standard that's intended to be fairly open-ended, even though it's an invitation to litigation over what that hypothetical reasonable person would say. For example, leases often say, "The tenant can't sublet without the landlord's consent; but the landlord shall not unreasonably withhold his consent." Okay, that's something. If the best reason the landlord can come up with is, "That guy has blue eyes, and I just hate blue-eyed people so I won't approve a sublease to him," then the tenant will win his lawsuit, probably, after a bunch of time and expense. But if the lease says, "The tenant can't sublet without the landlord's consent, and the landlord has absolute discretion to make his own subjective judgment as to whether consent is or isn't reasonable," then that blue-eyed guy ain't gonna get the sublease, and the tenant's lawsuit is going to be instantly dismissed.

Under what's in the document, it doesn't matter if the filibustering Dem is wrong, or if he's being objectively reasonable or not, or if 99.99999 percent of the American public would agree that "this nominee isn't an 'extraordinary circumstance.'" Under the express terms of this deal, the only thing that matters is what is inside the head of the filibustering Dem. And the only way anyone knows what's inside his head is ... what he says.

I repeat, to claim that the Dem signers have breached, Republicans have to go on the record, on the floor of the Senate, naming names, and saying, "I'm voting for the nuclear option now because that senator is lying when he says that, in 'good faith,' in the senator's own subjective judgment and discretion, Nominee X is an example of an extraordinary circumstance. That senator's real but secret judgment is that this is an ordinary nominee, and he's just lying about what's inside his head."

That's not ever going to happen. Even if John McCain or John Warner believe that Mark Pryor or Mary Landrieu are lying through their teeth and don't believe the Chuck Schumer/Ted Kennedy Democratic party line about the next Supreme Court nominee, John McCain and John Warner aren't going to say, "The honorable gentlewoman from Louisiana and the honorable gentleman from Arkansas are lying sacks of s**t." That is what we can be sure will never happen — that sort of intense personal confrontation — "I reject your statement as to your subjective belief and your own 'discretion and judgment,' and I say you're acting in bad faith." Never. Just can't, won't, mustn't happen, because Senators can't call each other "lying scumbags" on the floor of the Senate without really destroying the "collegiality of the institution."

Lindsey Graham on MSNBC just now: "But if there's a filibuster in the future, Lindsey Graham has the right to [vote to] change the rules if he believes that filibuster is bad for the country." No, Senator. Did you read the document before you signed it? It's not your judgment that matters, it's theirs. And you agreed to that. If they're badly, badly wrong, but still acting in subjective "good faith" — which can never be disproved — then your obligation is to vote against any rules change. Who's the public going to think broke his word, the senator who made a fuzzy promise that he says he's still complying with, or the senator who made a very clear promise and can't prove that the fuzzy guy is lying?

The commitment to oppose rules changes is unconditional. There is no out clause such as, "We commit, so long as Democrats are not abusing their discretion in our eyes." Instead, it says, "We trust that the Democrats won’t filibuster Luttig, McConnell, Estrada, Alito, or whomever is nominated to the Supreme Court unless they, in their own discretion, decide they want to. For our part, we put it in writing that we won’t support any rules change because our trust in those Democrats is absolute. Trust but verify? Nah. That’s mean. We just trust "period."

I'm going to revise and extend my remarks. The sentence on rules changes runs: "In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress. . ." That wording seems to allow for some Republican wiggle room if Democrats act contrary to the deal's "spirit." Republican signatories — especially Graham, DeWine, and Warner — should be asked to clarify their reading of the deal's ambiguities.

Nuh-uh, nope. You can't imply an obligation on the Dem signers' part to act in accordance with the "deal's spirit" when the written agreement expressly and unambiguously says that they are free to act according to their own unfettered, unchallengeable, subjective, private exercise of "discretion" and "judgment." This is another example where the common law of contracts (which says you can't imply a term into a contract that's contrary to an express term that the parties talked about, wrote down, and said they were agreeing to, and you can't vary the written terms with some sort of vague oral "understanding") is going to track the common-sense "court of public opinion":

"Why, what do they mean, accusing us of violating the 'spirit of the deal'? The 'spirit of the deal' was that I get to use my own judgment and discretion! See, it's right here! Just above the promise THEY made, and are now breaking, not to use the nuclear option!"

Wishful thinking, Ramesh. But wrong.

Lemme put this in language that is very crude, but apt: This is a deal where (a) both sides have agreed to "play nice," but (b) the Republicans' hands are tied, while the Dems' hands are (c) completely unfettered and (d) now holding the Republicans' testicles in their right hand and wielding a sledgehammer in their left. Will the Dems play nice? Well, we know they think Myers and Saad nominations are "extraordinary situations," because they're already promised to give the Republican President and his party a good whack in the testicles when those nominations come to the floor. And you think they'll play nice if Dubya nominates a young, strong, outspoken judicial and political conservative to be the next Chief Justice? Ask Robert Bork.

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UPDATE (Tue May 24 @ 12:20am): Sigh. The Pod is also engaged in wishful thinking:

[W]hat happened last night is very important. It breaks the Democratic logjam on circuit-court nominees. It establishes the principle that conservative judges have every right to serve on the higher benches even if Democrats can't stand it. And it means that if Republicans have to break the filibuster to ensure an up-or-down vote on a Supreme Court justice, they will have a very strong argument indeed. The argument will be that they are breaking the filibuster out of respect for the tradition that says the choices for the highest court must be advised and consented to by the full Senate.

The deal "broke the logjam" for exactly three nominees to the circuit courts. It expressly tanked the prospects of two others, and left several others — and all future nominees — subject to filibuster whenever the Dems decide, in their sole and unchallengeable discretion, that a nomination is an "extraordinary circumstance." Will that be forty percent of the time, as the names named in the document would suggest? That's the linear computation (ignoring the nominees not mentioned either way).

The deal establishes no "principles" that can be meaningfully determined or enforced. Nothing in that document says, or even suggests, that "conservative judges have every right to serve on the higher benches even if Democrats can't stand it." To the contrary, the deal creates a clear factual precedent (binding for at least this Congress — and that's damn near the only thing in the deal that's well-drafted, i.e., it doesn't bind the signers beyond 2006) that the Dems can indeed filibuster even circuit court nominees. If they can filibuster circuit court nominees, they certainly think they can filibuster Supreme Court nominees.

And the gutless suckers have already forfeited their right to argue that "tradition that says the choices for the highest court must be advised and consented to by the full Senate." They've signed a document that makes no distinction between nominees to the Supreme Court and any other nominees. Tradition or principle be damned, they've made an explicit promise. All that the Dems have to do to satisfy their part of the bargain, to the extent it can be enforced in the court of public opinion, is not to filibuster Pryor, Brown, and Owen. Heck, they can still try to get those three defeated, so long as they don't filibuster.

Pod's post is entitled "Don't Turn a Victory into a Defeat." I'm trying very hard not to violate Godwin's Law here, so I can't say anything about Munich or Dunkirk. I'll just say that as victories go, this one ranks right up with the Trojans' big win right after some of their guys decided that wooden horsie would look keen inside the city walls. Mmmm, lovely aroma of charred meat, what? Gives one a healthy appetite (if you close your eyes and pretend very hard)!

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UPDATE (Tue May 24 @ 9:00am): Moving what started as an update here to a new post, live-blogging today's Senate floor proceedings.

Thursday, May 19, 2005

Justice Owen and the Kirby vacuum cleaner case

To make Texas Supreme Court Associate Justice and Fifth Circuit nominee Priscilla Owen seem like a "judicial activist" who's "out of the mainstream," you have to distort her record badly. The Dems are busy doing that, but the mainstream media are their willing, even eager, accomplices.

The latest example to catch my attention is from the dependable (i.e., dependably wrong) Los Angeles Times, which tells us this today (boldface mine):

There was the case of Dena Read, a woman who was raped in her home by a Kirby vacuum salesman.The company had not checked his background, which included being fired from a previous job for sex offenses. The woman won a $160,000 jury verdict, and the Texas high court upheld the award on a 6-3 vote.

Owen dissented, arguing that the salesman was an independent contractor. For that reason, Kirby should not be held liable, she said.

In 1992, Leonard Sena, a Kirby distributor and owner of Sena Kirby Company of San Antonio (the "Sena Company"), recruited Mickey Carter to be one of his dealers. Carter's relationship with the Sena Company was that of an independent contractor subject to the "Kirby Independent Dealer Agreement," which required him, also, to sell Kirby systems to consumer end-users through in-home demonstrations.

In applying for employment, Carter listed three references and three prior places of employment. Had Sena checked, he would have found that women at Carter's previous places of employment had complained of Carter's sexually inappropriate behavior. Sena also would have found that Carter had been arrested and received deferred adjudication on a charge of indecency with a child, and that one of the previous employer's records indicated that Carter had been fired because of that incident. Further, Sena would have found that these records also contained witness statements, a confession, Carter's guilty plea, and the indictment charging him with the offense. Sena did not check.

Not long after being hired, Carter scheduled an appointment with Kristi Read for a demonstration. Before that scheduled appointment, Carter went to Read's home and met with her for several hours. He also brought doughnuts one morning, and then followed Read to a playground, where he spoke with her some more and played with her daughter. That afternoon, Carter returned to Read's home, where he sexually assaulted her.

The legal issue raised by the case was whether Kirby, the vacuum cleaner manufacturer — which hadn't hired the rapist, and was in fact twice-removed from him — could be held responsible for the rape. A majority of the Texas Supreme Court held that in these particular circumstances — because of the unusual degree of control that the manufacturer had retained and enforced on its distributors like Sena's company — the manufacturer could be held liable even at its remote distance from either the rape or from Sena's investigation and hiring of the rapist.

But the LAT version entirely omits any mention of Sena. It simply tells you that "the company" — that is, the manufacturer, Kirby — "had not checked on [the rapist's] background." Well, yeah, Kirby hadn't checked out Mickey Carter — and neither had Hoover, Oreck, Bissell, Dyson, or any of the other vacuum cleaner manufacturers that had also never hired this rapist.

Associate Justices Hecht, Abbott, and Owen dissented, and the first two each wrote dissenting opinions in which Justice Owen joined. Here's how Justice Hecht began his dissent (boldface mine):

To achieve what it considers to be a just result in this case — that the Kirby Company pay for a sexual assault committed by its independent contractor's independent contractor — the Court faces three obstacles. First, Kirby must somehow be found to have controlled its distributors' operations in a way that led to the assault, even though it contracted with them that it would "exercise no control" over their selection of dealers. Second, it must have been foreseeable to Kirby that a distributor might not check a dealer applicant's background if not required to do so and might mistakenly hire a person with a history of sexual misconduct who might assault a customer.... Third, the result in this case must not seriously affect the wide range of direct sales and service businesses from Tupperware to television cable companies that employ independent contractors, something the Court has absolutely no desire to do.

Today's decision is, I believe, aberrational and therefore not of much concern. The Court tries as much as it can to prevent its decision from impacting the multitude of businesses similar to Kirby's. A decision aimed at a result may not be consequential, but result-directed decision-making is more serious. A Court that departs from settled principles in one case may do so in another. To return to Justice Roberts' analogy, no appellate court decision should turn out to be "a restricted railroad ticket, good for this day and train only"; certainly, no decision should be designed with such restrictions.

Justice Abbott came to the same conclusion from a slightly different angle:

Kirby retained control over where the work was to be performed, not over who was to perform that work. Failure to require background checks of potential dealers relates to who is a dealer, not where the dealer works. As a result, the requisite relation between the control retained and the alleged injury is missing.

Justice Owen didn't even write a separate dissent! But the LAT would have you believe that she's practically out there at those vacuum cleaner home demonstrations, egging the rapists on and spitting in the victims' faces. This is their (and the Democrats') example of Justice Owen being "pro-business" and "anti-consumer."

While I happen to agree with the dissenters about this result, I certainly wouldn't question the integrity of lawyers and judges who'd stretch the law just a little bit to fit these particular facts. This is meat-and-potatoes tort law stuff — the kind of common law decision-writing that state court appellate judges do every day. But as Justice Hecht's dissent persuasively argues, if there was anyone in the Read case who was doing "activist judging," it was the majority engaging in "result-directed decision-making" — i.e., Kirby was the only deep-pocket defendant around to be sued, and the Read family had been terribly injured, so let's let them get their paws into Kirby's deep pockets.

Let's look at an analogy that might strike closer to home (so to speak) for more average citizens. Suppose you hire a general contractor to remodel your house. He in turn hires a painter, who jumps your back fence and rapes your next-door neighbor. Justice Owen would read Texas law to say that the rape was not your fault, and that your neighbor can't successfully sue you (but can sue the rapist and, maybe, your general contractor). But the result and maybe the logic of the majority opinion from which Justice Owen dissented suggest the opposite — you're on the hook, baby, 'cause that rapist couldn't have gotten into your back yard to jump your fence unless you'd hired the guy who hired him, so get out your wallet (or call your homeowners' insurance company and tell it to get out its wallet). Now, Justice Hecht thinks — and he's probably right — that on these slightly different facts (or if it'd been Tupperware instead of Kirby vacuums), the majority would have stuck to old, traditional tort law, and that the majority's departure in the Read case was an aberration. But when we're looking at promoting judges to a life-tenured position, do you want the squishy, sympathetic judge who makes aberrations, or the firm (i.e., old-fashioned), principled judge who sometimes says, even if it's harsh, "You've been hurt, but you still can't sue these particular folks for what happened to you because it wasn't their fault"?

Whether you want your appellate judges to selectively warp the law in order to benefit particularly sympathetic individuals or not, surely we can all agree that newspapers and politicians ought to tell the truth about a judicial nominee's written precedents. Here, the LAT simply didn't tell the truth.

A little history about the filibuster

The filibuster has been used historically by the minority party, which can't win with a vote count. Democrats have opposed the filibuster before — in the 1960s, they accused Republicans of using it to block civil rights legislation.

According to the Senate Historical Office, the record for the longest individual speech is held by the late Sen. Strom Thurmond of South Carolina, who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957. To keep the floor, he read some of his wife's recipes and passages from novels out loud.

It's no particular surprise that ABC News' reporters and editors might not be immediately familiar with all the details of the Civil Rights Act of 1957, which President Eisenhower signed into law on September 9, 1957. Your gray-bearded host of this weblog was still a little over two months shy of emerging from the womb then, and presumably many of ABC News' staff are younger than I am.

But Hindrocket and Rand are right to express surprise and dismay that even those youngsters — or anyone whose only knowledge of the civil rights struggle comes from history books — would presume, incorrectly, that Republicans have historically been anti-civil rights. Do they presume as well that this bias goes back to the first Republican President, Abraham Lincoln? Do they remember him as fighting to destroy the Union and perpetuate slavery? Was ABC News referencing the 1957 record-setting single-senator filibuster by Sen. Strom Thurmond (D-SC) under the (mis)impression that he was one of those "Republicans [using the filibuster] to block civil rights legislation"? Well, duh.

As it happens, because of the ongoing struggle over judicial nominations and the role of the filibuster in it, I've just re-read the best single book about politics that I've ever read: the third volume (2002) in Robert A. Caro's multipart biography "The Years of Lyndon Johnson," this one aptly entitled "Master of the Senate." At 1040 pages (plus footnotes and sources), this book isn't a casual read. But if you want to know about the history and dynamics of the United States Senate — including the filibuster (and related subjects like Rule XXII on cloture) — you probably couldn't find a better or more fascinating basic textbook.

Caro provides this information as part of his fabulous tale of how LBJ came to be the most brutally powerful and effective Senate majority leader by far in American history. LBJ had decided by 1957 that to ever have a chance of securing the Democratic Party's presidential nomination, he had to shed his (until then well-earned) image as an anti-civil rights southerner. And indeed, the Civil Rights Act of 1957 turned out to be entirely toothless. The 1957 Act — in contrast to, for example, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 that LBJ later succeeded in passing as President — is only important in historical context because it marked the first civil rights legislation to be successfully passed into law in 82 years.

The sole reason for that shameful 82-year gap in American civil rights history was the consistently effective use of the filibuster by southern Senate Democrats. Literally for decades, their number one priority had been to block anti-lynching and similar legislation favored by a substantial majority of Americans, and to preserve their unfettered "right" to filibuster in order to maintain that blocking ability.

Caro's book — lively and very readable despite its length — explains how LBJ achieved the seemingly impossible task of preventing a sustained filibuster by racist southern Democrats that would certainly have killed the 1957 Act too. LBJ did so in large part by deliberately gutting every meaningful provision from the version of the 1957 Act that had originally been drafted by the (Republican) Eisenhower Administration and supported on a bipartisan basis by Republicans and non-southern Democrats. This — plus LBJ's canny manipulation of the southern Democrats' fear that they might finally lose a cloture fight if they didn't let some kind of civil rights legislation through, and of their desire to help LBJ burnish his own presidential credentials — is why nobody other than Strom Thurmond tried to filibuster the 1957 Act. And indeed, it required all of LBJ's political genius — cynical and duplicitous and effective as it was — to keep pro-civil rights forces (i.e., Republicans and non-southern Democrats) from themselves blocking the watered-down version of the 1957 Act as being "worse than nothing."

So brilliant was Johnson's political manuevering, in fact, that Thurmond's lonely, long, and ultimately ineffective attempt to mount a solo filibuster against the 1957 Act was scorned by the other southern Democratic senators. As Caro tells the story (at pp. 997-98):

"When, however, Thurmond attempted to persuade the Southern Caucus to filibuster, [LBJ's senate mentor] Dick Russell [D-GA] countered with the same reasoning he had been using all year [as LBJ's ally] to deflect one. The southerners could use that reasoning to deflect the anger of constituents over their failure to filibuster — and they did.... And in the end, all of the southerners but one agreed, as usual, to accept their general's [i.e., Russell's] decision. When the bill returned to the Senate [from a joint Senate-House conference committee], Strom Thurmond held the floor for twenty-four hours and eighteen minutes — the longest one-man filibuster in the Senate's history — drawling out the Declaration of Independence, the Bill of Rights, and George Washington's Farewell Address — but that scene from the Senate's past was a solo performance; none of his fellow southerners would join him, and they were furious at him because they felt he was showing them up for not filibustering themselves .... "Oh, God, the venomous hatred of [Thurmond's] southern colleagues," [LBJ aide] George Reedy was to recall. "I'll never forget Herman Talmadge [D-GA]'s eyes when he walked in on the floor of the Senate that day and saw Strom carrying on that performance." Even Russell, faced with what the Atlanta Constitution called "rumblings of criticism [that] are being heard" in Georgia, felt a need to justify his strategy, telling the Constitution that the South had "nothing to gain and everything to lose" by filibustering, and declaring, "Under the circumstances we faced, if I had undertaken a filibuster for personal aggrandizement, I would have forever have reproached myself for being guilty of a form of treason against the South." ...

If you can listen to the present-day liberal Democrats lauding the filibuster — insisting upon its value to "protect minority interests," and thereby deliberately conflating their own status as the present political minority with the status of racial minorities whom the Democratic Party's southern senators historically used the filibuster to disenfranchise and persecute — without laughing out loud at the incredible irony ...

Well, then, you're probably exactly well-schooled enough in American history to work for ABC News. Congratulations.

Tuesday, May 17, 2005

I guess it's Les Nessman for me

The following (very morbid) story will make no sense at all until you've skimmed this website and this post in particular. There's no way I can trim this to 100 words, though — I'm just too damn longwinded to get it below 300 words, in fact.

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The sudden, strangely familiar "Whump!" sound from my left front wheel well reminded me that while patrolling Hobby Airport's runways, taxiways, and the auxiliary interior roadways set aside for authorized vehicular traffic, I'm supposed to keep an eye peeled for debris, among many other things.

At three AM, though, my cruiser's headlights and spotlight rarely catch anything more than a jackrabbit. And before the tower had radioed me about an "aircraft/vehicular collision," there'd been no explosion or fireball like you see in the movies.

Still, as I continued toward the civilian aviation terminal, I had no trouble picking out the Gulfstream II. Badly skewed on its parking pad, something had obviously clipped one wing hard enough to quarter-spin it.

And indeed, over there in the grass was one of the old pickup trucks used by one of the airlines' contract cleaning company to drive their crews across the airport, from their supply depot over to the parked commercial jets that they mucked out in the wee small hours of every day.

But you don't see many convertible-model pickups. This one had no cab roof — and in fact, nothing at all above hood level.

My spotlight traced wheel ruts through the grass back to the parking apron. No skid marks anywhere. The pickup musta come in fast from behind. Sumbitch veered off an aux road onto the parking apron without noticing, and he obviously never saw the moonlight glinting off the blade-like trailing edge of the right wing.

"Looks just like a giant axe blade lopped the top off of this old truck," I was saying into my radio when the distraught cleaning crew foreman wandered up. I pointed to the truck. "Como un hacha — like a hatchet," I said to him, and I made a sideways chopping gesture.

"¡No, no, señor!" he replied, "¡Era como una guillotina!"

I suddenly remembered when I had last heard that "whump!" sound — backing over the soccer ball my oldest kid had left in the driveway. Damned ball shot sixty yards down the street.

I said, "Help me look in the tall grass, okay?" I pantomimed searching, then gestured for him to join me.

"¿Para qué estamos buscando?" he asked.

What was the Spanish word I wanted? I almost said out loud: "Una pelota." But then I remembered, and said: "Una cabeza, amigo. Una cabeza."

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Apologies if, as is likely, my Spanish is rusty and badly mangled.

Although fictional (since I've never actually been an airport cop), this brief story is closely based on an actual case I had in the early 1980s.

I was hired in the middle of the night by the aircraft's owner to supervise the accident investigation; to prepare to defend against any potential claims by the decedent's family (none in fact were ever filed); and to sue the contract cleaning company for property damage to the jet.

As it turned out, the company's supervisors had given the decedent no training about airport driving — he didn't know a runway from a parking apron, spoke no English, and probably couldn't read. They'd let the guy drive regularly, despite knowing that he was unlicensed, prone to lean out the truck's window while driving so he could shout lewd propositions to female co-workers, and — both habitually and on that particular night — very drunk. Then they'd put him in a truck whose brake pedal had been missing for so long that the cylinder that the brake pedal was supposed to attach to had been worn down to a rounded nub coming out of the floorboard. But because they worked on airport premises, the cleaning company was required to have scads of insurance — which was a very good thing, given that both of the G-II's wings had to be replaced (at a cost well into eight figures).

By the time I got to Hobby a little before dawn, they'd long since located the decedent's missing part, and as far as I know nobody had driven over it. But otherwise, the accident happened in real life exactly as this story describes it.

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Update (Wed May 18 @ 1:40am): Okay, I've come up with, and posted as a comment here, another story that fits the topic and comes in at 100 words exactly. I trust that my conservative friends will recognize and forgive me the parody.

Just replace "-at-" with the "at sign," that lower-case letter A in a circle that you get from typing SHIFT+2. Due to aggressive spam filtering, however, I'm likely to miss your email unless the subject line of your email starts with "BeldarBlog."

Emails re broken links, typos, and spelling, grammar, and usage errors are cheerfully solicited and will be gratefully received.